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In human rights cases, employers often feel like all the pressure is on them to justify decisions made and actions taken, where there is a claim that those actions were taken for discriminatory reasons. And it’s true. In a human rights case, unlike in most lawsuits, the claimant merely has to advance facts that could lead to an inference that the action was discriminatory, and then the onus shifts to the employer to defend its decision.

This shifting of the onus means that as a practical matter, it is almost always up to the employer to justify its actions. However, in a recent decision, the Divisional Court confirmed that the onus is on the employee to first advance the facts that could support the inference of discrimination. In order to uphold such a claim, the Tribunal must carefully examine those facts, decide whether the inference can be raised, and then carefully examine the employer’s explanation to determine whether the presumption has been countered.

In Walton Enterprises v. Lombardi, the Divisional Court was hearing a judicial review of a decision by the Human Rights Tribunal. The claim was brought by Paul Lombardi, who claimed that he had been harassed at work, and ultimately terminated, on the basis of disability (depression), perceived disability (obesity) and perceived sexual orientation.

The evidence was clear at the hearing that Mr. Lombardi had been harassed. He testified about verbal abuse, and had evidence of text messages from his supervisor containing homophobic slurs. He reported this to the owner of the business, but it was not stopped. On judicial review, the employer did not challenge the findings of harassment.

However, the Tribunal had gone further, and found that Lombardi’s dismissal was also discriminatory. Lombardi had been dismissed because he got in a fist fight with another employee, leaving that employee with a black eye. Although he denied it at the time and during the hearing, other employees and a customer told the employer that Lombardi had started the fight. Lombardi’s position at the hearing was that he had to fight the other employee because he thought he would be harassed further if he backed down.

The Tribunal did not resolve that question in its decision, and made no finding about who had started the fight. However, the adjudicator apparently accepted the employee’s argument in a single sentence: “I find that the fight was at least in part a reaction by the individual applicant to being harassed in the course of his employment.”

As noted by the Court, “That sentence is the total analysis on the issue of whether the dismissal was discriminatory”, an aspect of the decision which led to an award of general damages of $20,000, and an additional 10 months’ lost wages.

The Court found that this analysis was inadequate to support the conclusion that the termination was discriminatory. It found that the Tribunal had not properly determined first whether Mr. Lombardi had established sufficient facts to shift the onus to the employer. In any event, the Tribunal had not made a sufficient analysis of whether it accepted the employer’s explanation for its decision. As the court stated:

…it was incumbent on the adjudicator to examine and make findings about the key event that led to the dismissal – the fight – and the role the harassment played in the fight. In order to come to a reasoned decision that the dismissal was discriminatory, she had to determine what happened: who started the fight; what was Mr. Lombardi’s role in it; and what impact did the harassment have on Mr. Lombardi’s participation? As there was conflicting evidence on these issues, the adjudicator needed to make findings of credibility, particularly with respect to Mr. Lombardi’s evidence, in order to explain and justify her decision.

Because the adjudicator had failed to make this analysis, the Court overturned the part of the decision finding that the dismissal was discriminatory. It also overturned the award of general damages, finding that the award would have been different if the Tribunal had come to different conclusions on the question of whether the dismissal was discriminatory.

The Divisional Court proceedings may turn out to be a pyrrhic victory for the employer, since both of these questions have been remitted to the Tribunal for another hearing.

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